People v. Windham

• Decision Date: 15 March 1977
• Docket Number: Cr. 19515
• Citation: 137 Cal.Rptr. 8,19 Cal.3d 121,560 P.2d 1187
• Court: California Supreme Court
• Parties: , 560 P.2d 1187 The PEOPLE, Plaintiff and Respondent, v. William Harmon WINDHAM, Defendant and Appellant.

Page 8

137 Cal.Rptr. 8

19 Cal.3d 121, 560 P.2d 1187

The PEOPLE, Plaintiff and Respondent, v. William Harmon WINDHAM, Defendant and Appellant.

Cr. 19515.

Supreme Court of California, In Bank.

March 15, 1977.

Peter J. Paoli, Tustin, under appointment by the Supreme Court, and Stuart W. Knight, Anaheim, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, ^* Justice (Assigned).

Contrary to an earlier conclusion reached by this court in People v. Sharp (1972), 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489, the United States Supreme Court has held that a defendant in a state criminal trial has a federal constitutional right to represent himself without counsel if he voluntarily and intelligently elects to do so. (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.) We are now called upon to determine how the high court's mandate will be implemented, specifically--prior to what point during pending criminal proceedings must the Constitutional right of self-representation be asserted if it is to be exercised? We conclude, for reasons which follow, that when a defendant has elected to proceed to trial represented by counsel and the trial has commenced, it is thereafter within the sound discretion of the trial court to determine whether such a defendant may dismiss counsel and proceed Pro se.

Defendant William Harmon Windham was convicted by a jury of assault by means of force likely to produce great bodily injury. (Pen.Code, § 245, subd. (a).) On appeal he contends that his midtrial motion to represent himself was erroneously denied and that such constitutional error is reversible per se.

The facts underlying defendant's conviction are only relevant to the question before us insofar as those facts shed light on defendant's motivations in requesting that he be allowed to represent himself for the remainder of the trial. It is sufficient for our purposes to state that defendant was forcibly ejected from a drinking establishment by the brother of William Meyers, the victim of the assault. When William later stepped outside to search for a missing wristwatch crystal, defendant surprised him and inflicted a brutal beating, knocking him unconscious and almost tearing one of his eyes from its socket. Defendant's theory was self-defense. He testified that he was attacked by the Meyers brothers and kicked William only to escape their assault.

Prior to the commencement of the third and final day of testimony, ¹ defendant moved to represent himself. ² Although he acknowledged that his counsel was a competent attorney, defendant expressed concern that on several occasions counsel had confused the names of individuals involved in the case. More significantly, defendant expressed an opinion that his attorney had been unable to elicit particular testimony which would have more convincingly established the theory of self-defense. ³

No opposition to defendant's motion was presented by the People and defense counsel even appeared to acquiesce in assuming the role of advisory counsel to assist defendant had the self-representation request been granted. After considering the arguments presented in support of the motion by both defendant and defense counsel the court denied the request principally on the ground that it came at too late a stage of the proceedings.

In People v. McDaniel (1976), 16 Cal.3d 156, 127 Cal.Rptr. 467, 545 P.2d 843, we held that the Faretta rule was to be applied prospectively and therefore was the effective rule solely 'in those cases wherein an accused sought or seeks to assert his right of self-representation in a trial which has commenced or will commence after June 30, 1975, the date upon which the decision in Faretta was filed.' (Id., at p. 168, 127 Cal.Rptr. at p. 474, 545 P.2d at p. 851, fn. omitted.) Defendant's trial commenced on October 14, 1975. Accordingly, although Faretta was not expressly mentioned during the hearing on defendant's motion, we assess the trial court's ruling based on our interpretation of the Faretta mandate. As noted by Mr. Justice Blackmun in his dissenting opinion, the high court's decision was rather nonspecific and left open a considerable number of unanswered questions, the issue before us among them. (See Faretta v. California, supra, 422 U.S. 806, 852, 95 S.Ct. 2525, 45 L.Ed.2d 562, Blackmun, J. dissenting.)

The timeliness of a midtrial motion for self-representation in the Post-Faretta era is an issue of first impression in California. Moreover, because a constitutionally based right of self-representation was not recognized in California prior to Faretta, we must look elsewhere for assistance in delineating appropriate guidelines for implementation of this recently pronounced right.

Several other jurisdictions have had previous experience with a constitutionally founded right of self-representation. For example, in Faretta the Supreme Court noted that the United States Court of Appeals for the Second Circuit has followed such a rule for a number of years. (E.g., United States v. Plattner (2d Cir. 1964) 330 F.2d 271; United States v. Denno (2d Cir. 1965) 348 F.2d 12, 15, cert. denied sub nom. DiBlasi v. McMann (1966) 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020.) In fact, the high court's own analysis of the issue closely paralleled that of the Plattner court. (Compare Faretta, 422 U.S. at pp. 812--817, 95 S.Ct. 2525 with Plattner, 330 F.2d at pp. 274--275.) In United States v. Denno, supra, 348 F.2d 12, 15, the Second Circuit confronted the precise issue before us in the instant case, holding: 'The right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial. (Citations.) Once the trial has begun with the defendant represented by counsel, however, his right thereafter to discharge his lawyer and to represent himself is sharply curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance. (Citations.)'

Denno pre-dated Faretta and we are not unmindful that it may be contended that Faretta diminished the persuasive authority of that decision. Significantly, however, the Second Circuit has had occasion to reassess its view on the matter in light of Faretta and has concluded: 'The recent Supreme Court decision, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), casts no pall on our (Denno) ruling. Faretta does not involve motions made after the commencement of trial and in that decision the Court cited (without disapproval) (Denno) which does. Faretta, supra, at 817, 95 S.Ct. at 2532, 45 L.Ed.2d at 571. Thus we adhere to (Denno). Subsequent application of its rule indicates that the reason for the request, the quality of the counsel representing the party, and the party's prior proclivity to substitute counsel are all appropriate criteria to be factored into the balance. See United States v. Catino, 403 F.2d 491, 497--498 (2d Cir. 1968), cert. denied, 394 U.S. 1003, 89 S.Ct. 1598, 22 L.Ed.2d 780 (1969); United States v. Ellenbogen, 365 F.2d 982, 988--989 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967).' (Sapienza v. Vincent (2d Cir. 1976) 534 F.2d 1007, 1010.)

The rule followed in the Second Circuit has also been adopted in at least two other jurisdictions. In a Pre-Faretta decision, the New York Court of Appeals, that state's highest tribunal, held that a Pro se motion was timely because it had been presented prior to the prosecutor's opening statement. (People v. McIntyre (1974) 36 N.Y.2d 10, 17--18, 364 N.Y.S.2d 837, 324 N.E.2d 322.) Restatement of the McIntyre rule in a Post-Faretta decision indicates that the New York Court of Appeals continues to adhere to the same timeliness requirement. (See People v. Reason (1976) 37 N.Y.2d 351, 354, 372 N.Y.S.2d 614, 334 N.E.2d 572.) In addition, the Arkansas Supreme Court, citing McIntyre, has held that such a rule is consistent with Faretta. (Barnes v. State (1975) Ark., 528 S.W.2d 370, 374; see Mosby v. State (1970) 249 Ark. 17, 22--24, 457 S.W.2d 836, 839--840.) Finally, we have been cited no Post-Faretta decision nor has our research revealed any in which a court has held that a defendant retains an unequivocal right of self-representation once he proceeds to trial represented by counsel. ⁴

The experience of other jurisdictions in dealing with the procedural implementation of a constitutionally based right of self-representation demonstrates that the requirement of a pretrial motion to that effect is a workable and appropriate predicate to the exercise of the Faretta right. We hold therefore that in order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. ⁵ Accordingly, when a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be. Furthermore, the defendant's 'technical legal knowledge' is irrelevant to the court's assessment of the defendant's knowing exercise of the right to defend himself. (Faretta v. California, supra, 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562.) However, once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound...